The Dallas Morning News reported that the Texas Medical Board has not followed up on its promise to get tough and to discipline doctors who engage in misconduct. According to the article, the Texas Medical Board is more focused on protecting doctors than the public. The article claims that 85 percent of the Board’s investigations led to no sanctions at all, and the number of private deal-cutting meetings – the typical generator of lower-level penalties – more than quadrupled from seven years ago. The News also reported that of the 131 doctors were disciplined at the meeting. Only two had their licenses revoked, and then only because they quit contesting the cases against them. A handful of others were suspended or surrendered their licenses rather than fight. “We’re not really in the business of jerking licenses,” said Dr. Lee Anderson, a Fort Worth ophthalmologist. “Our primary purpose in the disciplinary process is remediation.”
The importance of a Texas Medical Board that takes its business of disciplining doctors who engage in misconduct is critical. Texas is “a favorable location to practice medicine” because of a relatively strong economy and because the law in Texas imposes a cap on malpractice awards against medical providers which has discouraged patients from bring valid claims against medical providers who injure their patients through their negligence or gross negligence. Because of the limitations on damage awards in malpractice cases patients who previously filed malpractice suits are no longer able to find lawyers who are willing to file a lawsuit on a medical malpractice case, and now their only chance of holding the doctor accountable and protecting future patients from similar harm is by filing a complaint with the Texas Medical Board. According to the article, such complaints are up 35% compared to the time period prior to the imposition of the caps on damage awards.
In addition, the article pointed out that the process itself which is largely controlled by doctors and which is confidential calls into question its motives. By law, 12 of its 19 members are doctors. In addition, the process lacks transparency that the public needs from the Board to engender trust in its deciesions. Doctors have managed to enact laws that make the process secret. As a result, the public has no way of determining why the Board did not impose more significant disciplinary measures. Virtually all complaint and investigation records are confidential. Penalties generally are worked out privately and even Agreed orders do not reference patient names which makes the incidents more difficult to investigate by the general public. In addition, even when discipline is taken against a doctor, the patient involved in not notified of the discipline unless the patient filed a complaint.
The article cited several specific instances where the Board either imposed no penalty or what was presented as a slap on the hand despite the need to protect the public. The examples included:
•1) In August, the board announced decisions on four sex-related cases. Two involved doctors whom judges had already sentenced for crimes against children. Two involved psychiatrists found to have had affairs with adult patients – potentially sexual assault under Texas law, but they’ve not been charged. The child abusers were allowed to go on practicing medicine, though not with kids. The other two are working without restrictions.
•2) In August the Board also considered complaints against:
•a. Two doctors convicted of federal crimes. One of the federal convicts, was required to complete 22 hours of continuing medical education and must pass a test on legal issues;
•b. A neurosurgeon, Dr. Matthew J. Wills, who four times operated on the wrong body part four times whose punishment was requiring the neurosurgeon to complete 10 hours of continuing medical education. Dr. Wills now works as a neurosurgeon in Topeka, Kan., and according to the article, his boss called the sanction “over the top” and “a little bizarre.”
•c. A cardiologist found to have performed dozens of invasive procedures with little or no cause; and
•d. Seven physicians linked to a death including an ER doctor who was too drunk to intubate a patient – a patient who then died. That doctor must complete substance abuse therapy and submit to urine tests.
•e. The Board said it was uncommon for a sex offender to keep his medical license, in the case of Dr. Jeffrey Klem, a cardiologist who is on criminal probation after twice pleading guilty to injuring a child, in 2007 in Beaumont and in 2009 in Houston. Board records say the Beaumont plea was a response to “three allegations of unwanted sexual contact with a minor.” The board barred Klem from treating anyone younger than 21 for the next 15 years and required that he have a chaperone when treating adults. Dr. Klem must also consult with a psychiatrists, take a “professional boundaries” course and pay a $5,000 fine.
What does it take for the board to revoke a license? Consider the case of William Littlejohn, one of the two doctors who reached the end of the line in August. Dr Littlejohn ran a pain management and detoxification practice in Fort Worth but had been suspended since 2006, when the board deemed him “a continuing threat to the public health and welfare as a result of a mental condition.” Board records say Littlejohn provided a mentally ill woman with large amounts of painkillers and a gun. She nearly died of overdoses and invested more than $600,000 in an urgent care clinic the doctor was running, the records say. Littlejohn acknowledged providing the gun, saying that the woman needed it to protect herself against violent relatives. Only later, he said, did he realize she was bipolar.
As of the end of the fiscal year 2009, there are:
•· Approximately 48,000 practicing statewide
•· 820 doctors are on medical probation
•· 3,129 newly licensed doctors in 2009
•· 6,968 complaints received by Texas Medical Board in 2009
•· The board has initiated 2,873 investigations
•· 411 doctors disciplined
•· Only 10 licenses were revoked
•· 21 licenses surrendered in lieu of disciplinary proceedings
You can check to see if you doctor has a disciplinary history by viewing the Texas Medical Board’s Web site, http://www.tmb.state.tx.us/. Click “Check Your Doctor” in the blue bar on the left, then accept the usage terms and use the search form.
We encourage you to read the full article from the Dallas Morning News posted on October 11, 2009 as “Physician misconduct often tolerated by state medical board, analysis finds.”